Schuyler v. Zwiep

• Decision Date: 07 September 1976
• Docket Number: No. 61846,61846
• Citation: Schuyler v. Zwiep, 355 N.E.2d 554, 42 Ill.App.3d 91 (Ill. App. 1976)
• Parties: Daniel M. SCHUYLER, Jr., Administrator with the Will Annexed of the Estate of Christian W. Rolff, Deceased, Plaintiff-Appellee, v. Jan Rolff ZWIEP, Sr., Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 554

355 N.E.2d 554

42 Ill.App.3d 91

Daniel M. SCHUYLER, Jr., Administrator with the Will Annexed of the Estate of Christian W. Rolff, DeceasedPlaintiff-Appellee, v.Jan Rolff ZWIEP, Sr., Defendant-Appellant.

No. 61846.

Appellate Court of Illinois, First District, First Division.

Sept. 7, 1976.

Paul E. Plunkett, Chicago, for defendant-appellant.

Bruce K. Roberts, Chicago, for plaintiff-appellee.

SIMON, Justice:

Plaintiff filed a petition to construe the will of Christian W. Rolff, deceased.Defendant appeals from the order of the circuit court holding that the will made no provision for the disposition of the residue of decedent's estate if he survived his sister and for that reason resulted in an intestacy.

In 1963, Christian W. Rolff and his sister, Cateau Rolff, executed a joint will.Under Section Two, each testator left his or her estate to 'the survivor, his or her heirs and assigns or legal representatives.'Section Three provides for distribution of the estate 'in the event that our deaths should occur simultaneously, or approximately so.'Section Three contains a provision under which a trustee was to be appointed to handle the distribution to four first cousins and a second cousin, who is appealing the construction given the will by the circuit court.Section Three also provides for disposition of each share in the event that any cousin did not survive.Cateau Rolff died on May 20, 1969.Christian W. Rolff died on April 3, 1971.

The circuit court in construing the will, held the language of Section Three to be clear and unambiguous in providing for the disposition of the estate only in the event of the simultaneous deaths of Christian and Cateau Rolff.The court held that, because Cateau Rolff predeceased Christian Rolff, the latter had died intestate.The effect of this holding is to deprive the defendant(the second cousin) of any share in the estate, and to result in the distribution of the estate to numerous relatives of the decedent.

On appeal, defendant argues that the will contains a gift by implication to the persons named in Section Three.Alternatively, he contends that the will is at least sufficiently ambiguous to permit the admission of extrinsic evidence to determine the intent of the decedent.

Defendant relies on cases from states other than Illinois in which courts found a gift to persons named in a will to be implied even though the language of the will conditioned the gift on simultaneous deaths which did not take place.We find defendant's reliance on these cases misplaced because of the holdings in Bradshaw v. Lewis(1973), 54 Ill.2d 304, 296 N.E.2d 747andIn re Estate of Blansett(1975), 28 Ill.App.3d 552, 328 N.E.2d 593.

In both Bradshaw and Blansett, a husband and wife executed a joint will leaving everything to the survivor of them, providing for a bequest to third parties in case of simultaneous deaths of the testators, but making no provision for a bequest upon the death of the survivor if the testators' deaths were not simultaneous.In both cases, one testator survived the other.In each case it was held that the death of the survivor resulted in intestacy rather than in a gift by implication to the third parties named in the will.

Defendant's attempts to distinguish Bradshaw are unpersuasive.He notes that the simultaneous death provision in this case is more elaborate...